Contracting Consulting Engineering LLC v. United States

103 Fed. Cl. 706, 2012 U.S. Claims LEXIS 187, 2012 WL 769102
CourtUnited States Court of Federal Claims
DecidedMarch 12, 2012
DocketNo. 12-97C
StatusPublished
Cited by11 cases

This text of 103 Fed. Cl. 706 (Contracting Consulting Engineering LLC v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Contracting Consulting Engineering LLC v. United States, 103 Fed. Cl. 706, 2012 U.S. Claims LEXIS 187, 2012 WL 769102 (uscfc 2012).

Opinion

MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

MILLER, Judge.

FACTS

This post-award bid protest is before the court after argument on the Motion for Preliminary Injunction filed by Contracting, Consulting, Engineering LLC (“plaintiff’) on February 16, 2012.

I. Background

On June 7, 2011, the United States Department of State (the “agency”) issued Request for Proposal (“RFP”) designated Solicitation No. SAQMMA11R0043 (the “Solicitation”) seeking proposals for supplies and services to support the agency in assisting the Colombian National Police Aviation (“ARAVI”) program that operates throughout Colombia in furtherance of the agency’s counternarcotics effort. Plaintiff was the incumbent contractor on the previous iteration of the contract and had been performing pursuant to a task order issued under its General Services Administration (“GSA”) contract (“GSA task order”). See Deck of Terry Lord, Jr. (undated), ¶ 4. The task order was effective from July 12, 2010, through July 11, 2011, and was necessary to accommodate the follow-on acquisition under the Solicitation. Id. Because it was apparent that the new award would not be made until after the GSA task order’s expiration, the agency exercised its option to extend plaintiffs performance under the contract and issued a three-month task order pursuant to 48 C.F.R. (“FAR”) § 52.217-8 (2011), effecting plaintiffs performance through October 2011. The agency decreased the scope of the services to be provided under the task-order extension. Plaintiff was ordered to decrease the number of personnel and cease procurement of aviation spare parts.

[708]*708The Solicitation informed offerors that award would be made to the lowest-priced, technically acceptable offeror. On September 15, 2011, plaintiff was informed via e-mail that it was an unsuccessful offeror. Compl. filed Feb. 10, 2012, ¶ 31. Plaintiff filed a preaward protest the following day with the United States Government Accountability Office (the “GAO”). Id. On September 30, 2011, the agency opted to take corrective action and informed the GAO that it would reevaluate past performance and reconsider deficiency determinations. Id. The agency confirmed its intention in an October 3, 2011 e-mail sent to the GAO. Id.

On October 15, 2011, the agency awarded Contract No. SAQMMA11C0225 to DynCorp International (“intervenor”) after determining that it was the only technically acceptable offeror. Id. ¶ 1; see also Lord Deck ¶ 6. On October 27, 2011, the agency notified plaintiff via e-mail that it was an unsuccessful offeror because its proposal was rated technically unacceptable. Compl. ¶ 32. Plaintiff filed a post-award protest with the GAO on October 28, 2011. In accordance with the Competition in Contracting Act, 31 U.S.C. § 3553 (2006), the agency issued a stop-work order. Shortly thereafter, M-7 Aerospace (“M-7”)— another unsuccessful offeror — also filed a post-award protest with the GAO.

Due to the GAO protests, the agency issued the final three-month extension permitted by FAR 52.217-8, which enabled plaintiffs performance through January 10, 2012. This task order, similar to the task order extending plaintiffs performance through October 2011, was also of decreased scope. On January 11, 2012, because the GAO protests still were pending and the current task order had expired, the agency issued a three-month sole-source task order to plaintiff. The period of performance pursuant to this task order ends on April 10,2012.

Plaintiffs and M-7’s protests were denied on February 2, 2012, and February 13, 2012, respectively. On February 14, 2012, Terry Lord, Jr., Administrative Contracting Officer for ARAVI, lifted the stop work order.

II. Proceedings in the United States Court of Federal Claims

On February 10, 2012, plaintiff filed a complaint in the United States Court of Federal Claims alleging that the agency’s determination that intervenor submitted the only technically acceptable proposal was arbitrary and capricious because intervenor’s proposal “fails to meet the Solicitation’s express requirements for senior program management staff’ and “violates the terms of the Solicitation in pricing the procurement and freight forwarding functions.” Compl. ¶¶ 12-13. Plaintiff seeks permanent injunctive relief prohibiting the agency from authorizing in-tervenor to begin performing the contract and requiring the agency to amend the Solicitation and request revised proposals, as necessary.

On February 16, 2012, pursuant to the parties’ proposed briefing schedule, plaintiff filed its Motion for Preliminary Injunction. Defendant and intervenor opposed on February 21, 2012. During argument this date, plaintiff justified its submission of a supplemental declaration in support of showings to meet the three injunctive criteria relating to irreparable harm, balance of hardships, and the public interest. Over defendant’s objection, the court granted plaintiffs motion filed on February 23, 2012, for leave to file the declaration.

DISCUSSION

I. Standard of review

The Court of Federal Claims derives jurisdiction over bid protests from the Tucker Act, 28 U.S.C. § 1491(b)(1) (2006). Specifically, the court has jurisdiction over actions by an “interested party” objecting to (1) a solicitation by a federal agency for bids or proposals for a proposed contract; (2) a proposed award or the award of a contract; or (3) any alleged violation of a statute or regulation in connection with a procurement or a proposed procurement. 28 U.S.C. § 1491(b)(1); see also Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). The court may “award any relief that the court considers proper, [709]*709including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2).

The award of injunctive relief is extraordinary and only merited in “extremely limited circumstances.” United States v. John G. Grimberg Co., 702 F.2d 1362, 1372 (Fed.Cir.1983). On request for preliminary injunctive relief, the court must weight the following four factors: (1) the likelihood of plaintiffs success on the merits; (2) irreparable harm to plaintiff if the injunction is not granted; (3) the balance of hardship between the parties; and (4) the public interest. Erico Int’l Corp. v. Vutec Corp., 516 F.3d 1350, 1353-54 (Fed.Cir.2008) (vacating trial court’s grant of preliminary injunction); see also Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1344 (Fed.Cir.2008) (affirming trial court’s grant of preliminary injunction); U.S. Ass’n of Imps, of Textiles & Apparel v. United States,

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103 Fed. Cl. 706, 2012 U.S. Claims LEXIS 187, 2012 WL 769102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/contracting-consulting-engineering-llc-v-united-states-uscfc-2012.